By the Court, Crockett, J.:
The argument on the rehearing in this cause has convinced me that the judgment ought to be reversed. The eighth instruction, given at the instance of the prosecution, was clearly erroneous. In defining the right of self-defense it tells the jury that this right “cannot be exercised in any case, or to any extent not necessary. The party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.” This definition excludes all that class of cases in which the act imputed to the accused was apparently one of necessary self-defense, though as it afterward appeared, he was, in fact, ill no danger of suffering a bodily injury. If a gun be pointed at one in a threatening manner, under such circumstances as to induce a reasonable belief that it is loaded and will be discharged and thereby produce death or inflict a great bodily injury on the person threatened, he will be justified in using whatever force may be necessary to avert the apparent danger, though it may afterward appear that the gun was not loaded, and that he was in no danger whatever. In a subsequent portion *69of the instruction, the same error is repeated. But in the instructions given at the request of the defendant, the Court correctly and very explicitly states the law on this point. On the first hearing we were of opinion that this cured the omission in the eighth instruction, and rendered it quite improbable that the jury had been misled by it. But on further reflection, I am convinced the instructions are so contradictory that they cannot be reconciled, and the erroneous instruction may very naturally have misled the jury. In the eighth, the jury is told that the right of self-defense cannot be exercised “in any case or to any degree not necessary, and that the party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.” But in those given at the request of the defense a wholly different rule is laid down, and the jury is informed that if the deceased assaulted the defendant under such circumstances as to create a reasonable apprehension that he was about to suffer a great bodily injury, the defendant “ might safely act on such appearances, and kill the assailant, if absolutely necessary to avoid the apprehended danger, and the killing is justifiable, although it might afterward turn 'out that the appearances were false and there was in fact neither design to do him serious injury nor danger that it would be done.” On the one hand the jury is told, in substance, that the danger must have been real, and that the right of self-defense cannot be exercised in any case or to any degree not necessary; and on the other hand, that it is sufficient if the danger was apparent, though it afterward turned out that in fact there was no actual danger and no necessity for the killing. These propositions are contradictory and wholly irreconcilable, and it is impossible to determine on which of them the jury acted. When the instructions on a material point are contradictory there should be a new trial. (People v. Campbell, 30 Cal. 312; Brown v. McAllister, 39 Cal. 577; People v. Valencia, 43 Cal. 552.) Por this *70error the judgment must he reversed; but as an important point of practice arose in the progress of the trial we deem it best to dispose of it on this appeal.
In summing up the cause the defendant’s counsel read to the jury extracts from several reported cases, on which he commented, and the facts of which he compared with those of the case at bar, stating at the time that he read these extracts to illustrate his argument. Ho objection to this course was made at the time; but after the argument closed the Court stated, in the presence and hearing of the jury, “that such course was improper, and would not have been permitted if it had been objected to; that it was calculated to and might mislead the jury; and stated, at the same time, that the written instructions were the only guide on questions of law for the jury in this case.” It further appears, from the bill of exceptions, that the defendant’s counsel “argued the case fairly to the jury, and did not attempt or offer to mislead them as to the law of the case, or as to their duty to accept and be bound by the instructions or charge of the Court, and was guilty of no improper conduct, unless the matters hereinbefore stated constituted improper conduct.” In this State, it is so well settled as no longer to be open to debate, that it is the duty of the jury in a criminal case to take the law from the Court. The -counsel for the defendant not only at the trial admitted this to be the rule, as appears from the bill of exceptions, but concedes it in argument here. He insists, however, that he did not contravene this rule, in reading to the jury, in illustration of his argument, reported cases similar in some points to the case at bar; and claims that he was entitled to do this in order to enable the jury the better to apply the law, as expounded by the Court to the facts of the case. As a general rule, the practice of allowing counsel, in either a civil or criminal action, to read law to the jury, is objectionable, and ought not to be tolerated. Its usual effect is to confuse rather than *71to enlighten the jury. There are cases, however, in which it is permissible for counsel, by way of illustration, to read to the jury reported cases, or extracts from text-books, subject to the sound discretion of the Court, whose duty it is to check promptly any effort on the part of counsel to induce the jury to disregard the instructions, or to take the law of the case from the books rather than from the Court. It appears from the bill of exceptions that in this case the counsel kept strictly within the rule, and was not obnoxious to the charge of attempting to mislead the jury, nor guilty of any impropriety whatever. There was, therefore, nothing to justify the comments of the Court, made in the hearing of the jury. But we do not understand the Court as imputing to the counsel any breach of professional propriety in an offensive sense, nor do we think the jury could so have understood it.
Judgment reversed, and cause remanded for a new trial.